Common IP myths

IP Myth No.1: I’m free to use anything on the internet

Many people make the expensive mistake of thinking that anything published on the Internet is free for all to use because it is “in the public domain”. This is not the case at all. The contents of most websites (e.g. their text and images) are likely to be subject to copyright protection, even if the website does not display a copyright notice. The concept of something being in the public domain refers to the expiry of copyright protection whereupon a work does become free for all to use. Just because something is publicly accessible on the Internet certainly does not mean that it is in the public domain.

IP Myth No.2: My name is protected by copyright

Many people confuse or misunderstand the difference between trademark registration and copyright protection. Names, titles or short phrases are not entitled to copyright protection. Copyright protection is only granted to works of a more substantial nature whereby sufficient skill and labour has been expended in their creation, such as a novel or poem.

If the name relates to a business name or a brand name for a product or service, then protection should be sought by way of a trademark registration.

IP Myth No.3: A patent will protect my invention ‘world-wide’

There is no such thing as a “world-wide” patent. A patent application must be filed in each country or jurisdiction in which protection is sought (within 12 months of a first filing) and the examination and decision to grant will be subject to the relevant local patent laws. However, there are international filing systems known as the Patent Cooperation Treaty (PCT) and European Patent Convention which can assist in obtaining patent protection in multiple jurisdictions.

IP Myth No.4: If something doesn’t have a copyright notice, then it is not protected

Just because a work does not have a copyright notice, this does not mean that copyright does not exist as there is no legal requirement in the UK to use a copyright notice. Using a copyright notice is strongly recommended though, as it can help to deter infringement or plagiarism by others

IP Myth No.5: The TM symbol means that a trademark has been registered

This is incorrect. The ™ symbol can be used by any trader at any time in order to alert others to the fact that the mark indicated is being used by them as a trademark in the course of trade. Only the ® symbol means that a trademark has been formally registered and it is an offence (under the Trade Marks Act 1994) to falsely represent that a trademark has been registered if it has not.

However, never assume that just because a trademark is not registered that it is still free for you to use. If a trader is using a trademark then they may well have acquired earlier common law rights which could form the basis of a passing-off action against you.

IP Myth No.6: Only words or logo can be protected by trademarks

This is incorrect. In the UK, a trademark is defined as being ‘any sign’, but it must be capable of being represented graphically and it must be capable of distinguishing goods or services of one undertaking from those of other undertakings. In addition to words and logos, a trademark may therefore also consist of personal names, slogans, letters, numerals or the shape of goods or their packaging, providing that they meet the requirements above.

There are also a number of other unconventional types of marks that can, in theory, be capable of registration as trademarks, including: single colours or colour combinations, smell marks, sound marks (i.e. musical jingles) and movement marks and holograms.

IP Myth No.7: You have to register your copyright to protect it

This is another very common misunderstanding that we frequently encounter. In the UK, copyright is an automatic right – this means that it comes into existence automatically upon the creation of a piece of work which meets certain conditions. For example, a work will only qualify for copyright protection if it is original and exhibits a degree of labour, skill and judgement. Unlike for registered trademarks and registered designs, there is no formal registration procedure to protect copyright.

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Without an attorney to handle the complex legal and technical issues involved in obtaining good patent and trademark protection, you are very likely to end up with something so narrow in its scope and therefore easy to get round. Trying to save money on a patent or trademark application can prove a to be costly down the line.
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